Bargmann v. Helms
Citation | 230 U.S.App.D.C. 164,715 F.2d 638 |
Decision Date | 23 August 1983 |
Docket Number | No. 82-1801,82-1801 |
Parties | Eve BARGMANN, M.D., et al., Petitioners, v. J. Lynn HELMS, Administrator, Federal Aviation Administration, Federal Aviation Administration, Drew Lewis, Secretary of Transportation, Department of Transportation, Respondents. |
Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Cornish F. Hitchcock, Washington, D.C., with whom Alan B. Morrison, Washington, D.C., was on brief, for petitioners.
John H. Cassady, III, Atty., F.A.A., Washington, D.C., for respondents.
Darlene M. Freeman and Vicki L. Sherman, Attys., F.A.A., Washington, D.C., were on brief, for respondents.
Before WALD and MIKVA, Circuit Judges, and SWYGERT, * Senior Circuit Judge, United States Court of Appeals for the Seventh Circuit.
Opinion for the Court filed by Circuit Judge MIKVA.
I. BACKGROUND
The petitioners in this case are forty individual doctors, health care professionals, and airline passengers and two non-profit consumer organizations, Aviation Consumer Action Project (ACAP) and Public Citizen Health Research Group (HRG). In February 1981, several of these petitioners filed a petition for rulemaking with the FAA, requesting the agency to revise its aircraft equipment regulations to require the carriage of additional medical equipment on commercial flights. Currently, the FAA requires air carriers to provide "[a]pproved first-aid kits for treatment of injuries likely to occur in flight or in minor accidents." See 14 C.F.R. § 121.309(d) (1982). In particular, the FAA requires these first-aid kits to include: limited numbers of bandage compresses, antiseptic swabs, ammonia inhalents, and roller bandages; 1/8 of an ounce of burn compound; one (each) arm and leg splint; one roll of adhesive tape; and a pair of scissors. See Appendix A, 14 C.F.R., Part 121 (1982).
The gist of the petition for rulemaking was that the contents of these first-aid kits were inadequate to treat the more serious medical problems that airline passengers sometimes develop. To this end, the petitioners cited to articles in professional medical journals and to letters from individual physicians indicating the frequency with which such medical emergencies as heart attacks, allergic reactions, choking, and diabetic comas occur in flight. See, e.g., Petition for Rulemaking at 2-4 & Attachments 1, 3, reprinted in Joint Appendix (JA) 13-15, 18-21, 24. The petitioners also indicated that approximately 75% of long-distance flights have one or more qualified health professionals on board; that over 90% of surveyed physicians report they would volunteer their medical services to passengers who become ill in flight; and that most physicians believe that airlines should be required to carry more sophisticated medical equipment and medications than they now carry. See Petition for Rulemaking at 16 & Attachment 1, reprinted in JA 16, 18-21. Accordingly, the petitioners requested the FAA to consider upgrading domestic air carriers' medical kits toward the more comprehensive kits now used by several international carriers and toward several "model" kits now recommended by medical experts. See Petition for Rulemaking at 4-5 & Attachments 2, 3, reprinted in JA 15-16, 22-28 (referring to "idealized" inflight kit proposed by the Air Transport Medicine Committee of the Aerospace Medical Association; to a list of essential equipment for ambulances developed by the Committee on Trauma of the American College of Surgeons; and to the Doctor's and Medical Service Kits currently used by Scandanavian Air Lines). Although the petition for rulemaking did not endorse any particular list of medical supplies, see JA 15, the contents of the model kits to which the petitioners referred were generally different in kind from the simple bandages, swabs, and splints now required by FAA regulation. The model kits, for example, contain such additional equipment as stethoscopes, oral airways, suction pumps, and oxygen masks and such medications as Adrenalin (to treat cardiac arrest, asthma, and allergic reactions), glucose (to treat diabetic insulin shock), and Donnatal (to treat gastrointestinal difficulties). See JA 22-28.
II. REVIEWABILITY AND STANDARD OF REVIEW
At the outset, it is helpful to orient the posture of this case within this circuit's caselaw regarding the reviewability and scope of review of an agency's denial of a petition for rulemaking. In WWHT, Inc. v. FCC, 656 F.2d 807 (D.C.Cir.1981), and Natural Resources Defense Council, Inc. v. SEC (NRDC ), 606 F.2d 1031 (D.C.Cir.1979), respectively, this court held reviewable an agency's decision not to institute rulemaking and an agency's decision, after rulemaking proceedings had been completed, not to promulgate a proposed rule. In both cases, the strong presumption of reviewability under section 10(a) of the Administrative Procedure Act (APA), 5 U.S.C. § 701(a) (1976), was found not to have been offset by a "clear showing" that "pragmatic considerations" made judicial review inappropriate. See WWHT, 656 F.2d at 815 (quoting NRDC, 606 F.2d at 1043). Although both WWHT and NRDC suggest that judicial review might be inappropriate, as a practical matter, in situations where an agency chooses not to regulate for reasons ill-suited to judicial resolution, e.g., because of internal management considerations as to budget and personnel or for reasons made after a weighing of competing policies, see WWHT, 656 F.2d at 817 (quoting NRDC, 606 F.2d at 1046), such pragmatic difficulties are clearly not before us in the present case. Instead, the FAA has denied a petition for rulemaking solely because it believes it lacks the statutory power to act--a rationale that is uniquely well-suited to judicial resolution. Accord National Black Media Coalition v. FCC, 589 F.2d 578 (D.C.Cir.1978) ( ); Action for Children's Television v. FCC, 564 F.2d 458 (D.C.Cir.1977) (same).
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